On Appeal from the United States Environmental Protection Agency; No. 0090-1.
Stapleton, Hutchinson and A. Leon Higginbotham, Jr., Circuit Judges.
HIGGINBOTHAM, JR., Circuit Judge
St. Marys petitions this court for review of the Environmental Protection Agency's ("EPA") decision to approve an individual control strategy issued by the Pennsylvania Department of Environmental Resources for the St. Mary's Publicly Owned Treatment Works, and also the EPA's decision to include Elk Creek on the list of polluted navigable waters subject to the requirements of the Clean Water Act's § 304(l) program. 33 U.S.C. § 1314(l). Because such actions do not constitute promulgation of an individual control strategy by the EPA within the meaning of 33 U.S.C. § 1369(b)(1)(G), we do not have jurisdiction over the case and must therefore dismiss the petition.
In order to ensure that states play the principal role in the abatement of water pollution in their own jurisdictions, the Clean Water Act allocates responsibilities between the states and the EPA. See EPA v. California ex rel. State Water Resources Control Bd., 426 U.S. 200, 207-09, 96 S. Ct. 2022, 2025-27, 48 L. Ed. 2d 578 (1976); (describing the state and federal roles in implementing the National Pollutant Discharge Elimination System); E.I. DuPont de Nemours & Co. v. Train, 430 U.S. 112, 116-21, 97 S. Ct. 965, 968-72, 51 L. Ed. 2d 204 (1977) (summarizing the statutory allocation of responsibilities within the Federal Water Pollution Control Act). The primary regulatory mechanism of the Clean Water Act is the prohibition of discharges of any pollutant from any point source unless that discharge complies with the Act's specific requirements. §§ 301(a), 502(12) Clean Water Act, 33 U.S.C. §§ 1311(a), 1362(12). This compliance is achieved by obtaining and adhering to the terms of a National Pollutant Discharge Elimination System ("NPDES") Permit. See § 402 Clean Water Act, 33 U.S.C. § 1342. While the EPA has the original authority to issue NPDES permits, Congress intended that the states should be granted the authority to issue such permits upon proper application to the EPA for such authorization. See American Paper Inst. v. EPA, 890 F.2d 869, 873 n. 6 (7th Cir. 1989) (citing several instances in the legislative history of various amendments to the Clean Water Act indicating that Congress intended the states to play the leading role in implementing the NPDES program).
According to the EPA, it has, to date, granted 39 states, including Pennsylvania, the authority to issue NPDES permits. In authorized states, NPDES permits are issued by the appropriate state agency, subject to EPA objection. § 402(d) Clean Water Act, 33 U.S.C. § 1342(d). In Pennsylvania, the Department of Environmental Resources ("DER") is the appropriate state agency. A final state-issued permit is subject to judicial review in state court, with the state defending the permit decision and terms. See American Paper Inst. v. EPA, 890 F.2d at 874-75.
In 1987 Congress amended the Clean Water Act through passage of the Water Quality Act of 1987, Pub. L. No. 100-4, 101 Stat. 7 (1987). This amendment established the § 304(l) program, 33 U.S.C. § 1314(l), whose purpose is to identify and control "toxic hot spots." 133 Cong. Rec. 1287 (1987) (statement of Sen. Moynihan). Section 304(l) of the Clean Water Act mandates that states submit lists of polluted navigable waters and a list of dischargers of toxic pollutants to the EPA. Generally, the Act requires the states to submit the following: 1) the " A " or " Long List " - a list of all waters that, after the application of effluent limitations, cannot reasonably be anticipated to attain water quality for state designated uses due to toxic pollutants; 2) the " B " or "Short List" - a list of all navigable waters that, after application of federal and state effluent limitations, the state does not expect to meet the prescribed water quality standards due to listed point sources; 3) the " C " or " Discharger List " - a list of those point sources that are impairing the achievement of those water quality goals as well as the amount of pollutant each of those point sources produces; and 4) the " Mini List " - a list of waters that cannot be anticipated to maintain water quality that will assure protection of public health, public water supply, agricultural and industrial uses, as well as, the protection of shellfish and recreational uses. See 33 U.S.C. § 1314(l).
Finally § 304(l) requires the states to submit an Individual Control Strategy ("ICS") for each point source (included on a "C List") which was discharging toxic pollutants into waters on a "B List." The ICS sets out discharge limitations that the state has determined will reduce point source discharges of toxic pollutants to meet water quality standards within three years after the date of the establishment of the ICS. 40 C.F.R. § 123.46(a); see 33 U.S.C. § 1314(l)(1)(D). EPA defines an ICS to be a draft or final NPDES permit accompanied by supporting documentation showing that effluent limits are sufficient to meet applicable water quality standards. See 40 C.F.R. § 123.46(c); 54 Fed. Reg. at 23,888. In states with authorized NPDES programs, the program works as follows: pursuant to § 304(l)(2), EPA was to approve or disapprove the ICSs submitted by the states (due no later than February 4, 1989) within four months of those submissions (i.e., by June 1989). If a state fails to submit any ICSs or fails to submit approvable ICSs, the EPA, "in cooperation with such State . . . shall implement the requirements of" § 304(l)(1) in that state. 33 U.S.C. § 1314(l)(3). If EPA assumes authority for issuing the ICS, the deadline for developing ICSs is extended one year to June 1990. Id.
EPA reviews the state's submittal of lists and ICSs. 40 C.F.R. §§ 123.46(e), 130.10(d)(8) and (10). EPA may approve or disapprove a state's § 304(l) lists. EPA may disapprove the state's lists in whole or in part if the state fails to include certain water segments or pollution dischargers on those lists. If EPA disapproves the state's submittal, EPA, in cooperation with the state, must develop the lists by June 4, 1990. 40 C.F.R. § 130.10(d)(10); Westvaco Corp. v. EPA, 899 F.2d 1383, 1385 (4th Cir. 1990).
Similarly, EPA may approve, conditionally approve, or disapprove a state-submitted ICS. 40 C.F.R. § 123.46(b). If a state is unable to issue a final permit on or before February 4, 1989, an ICS may be a draft permit with an attached schedule indicating that the permit will be issued on or before February 4, 1990. If the state's ICS submission is in the form of a draft NPDES permit, EPA will either conditionally approve or disapprove the ICS. If the state submits a final NPDES permit as the ICS, EPA will either approve or disapprove it as an ICS "sufficient . . . to achieve the applicable water quality standard." § 304(l)(1)(D), 33 U.S.C. § 1314(l)(1)(D).
On February 3, 1989 the Pennsylvania DER sent the EPA its lists of polluted waters and dischargers. (App. at 162). At that time, St. Marys Publicly Owned Treatment Works ("St. Marys POTW" or "St. Marys") was not included on the "C" list (of point source dischargers); nor did DER submit an ICS for the facility.*fn1 In a letter dated May 12, 1989, EPA responded to DER's submission. EPA notified DER that the long list (the "A" list) was "complete with several exceptions," but the mini, short (the "B" list) and discharger lists (the "C" list) were "incomplete." (App. at 173). The letter concluded by stating that if the ...